UTICA OBS E RVE R-DIS PATC H
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GUILTY VERDICT Barnes
lowers his head as he is convicted in June 1989. “It was probably the saddest day of my life.”
THE CASE OF FORENSICS INNOCENCE PROJECT symposium at ACS meeting illuminates field’s challenges and rifts CARMEN DRAHL, C&EN WASHINGTON
STEVEN BARNES’S truck was muddy. As
he pulled up on a September day in 1985 to a roadblock for what he thought was a routine traffic stop, the dirt was close to the last thing on his mind. But the mud caught the attention of local police officers in Barnes’s small, upstate New York town. They were investigating the rape and murder of high school student Kimberly Simon, whose body had been found days before, on the side of a muddy dirt road. Barnes, 19, went to the station for more than 12 hours of questioning. He explained to investigators he’d been at a local bowling alley at the time of the murder. He gave police permission to search his truck and figured that was that. Then, two years later, investigators asked Barnes for blood, saliva, and hair samples. Barnes was arrested in 1988. At his trial,
forensic experts testified that soil, hair, and an imprint from denim on his muddy truck matched samples from Simon. It proved a convincing combination to the jury, along with vague statements from eyewitnesses and a jailhouse snitch. In June 1989, Barnes was convicted and sentenced to 25 years to life in prison. From his cell in 1992, Barnes wrote a letter to a new legal organization he hoped might set him free. That organization, called the Innocence Project, agreed to take his case in 1993. The Innocence Project is a nationwide legal network that works to exonerate innocent prisoners through DNA testing. Experts agree that the Innocence Project has changed the justice system for the better, both by freeing the innocent and by en-
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couraging scrutiny of all types of evidence presented in the courtroom. It is perhaps the most visible player in a movement that is challenging improper use of forensic science in the legal system. That role has led to tensions with some members of the forensic science community, who are concerned that the criticism of crime labs that has emerged is unfairly broad. In an effort to spark a dialogue with chemists and rally them to the cause, the Innocence Project held a symposium at last month’s American Chemical Society national meeting in Philadelphia. The session highlighted challenges in forensic science as well as forensic techniques that lack scientific vetting. Before the Innocence Project existed, says Peter M. Marone, director of the Virginia Department of Forensic Science,
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“was the little guy getting a fair shake? No.” The organization’s efforts to free its mostly destitute clients date to 1992, when attorneys Peter J. Neufeld and Barry C. Scheck, both members of O. J. Simpson’s defense team, established the Innocence Project as part of Yeshiva University’s Benjamin N. Cardozo School of Law. Since its founding, the Innocence Project has had a hand in nearly 300 exonerations. One of those exonerated is Ray Krone. An honorably discharged veteran, Krone served 10 years “in a cell the size of most of y’all’s bathroom,” he said in Philadelphia, for a murder in Phoenix he did not commit. An expert for the prosecution had testified that bite marks on the victim matched an impression Krone made for police on a Styrofoam cup. With help from the Innocence Project, DNA evidence cleared him in 2002. “I can’t tell you what it was like to be called a monster,” he said. “Thank God for DNA.” IT WAS DNA THAT made the Innocence
A set of opinions, even expert opinions, doesn’t amount to science. Other forensic tests lag behind DNA in several ways. These tests include fingerprinting, as well as the hair, soil, and denim imprint analysis used in Barnes’s trial, and the bite-mark analysis from Krone’s trial. They cannot point to an individual, and little to no research has been conducted toward standardizing them or defining their error rates. Problems arise when attorneys, judges, or juries attach the same aura of reliability to all forensic sciences regardless of their scientific merit, says attorney Josh D. Lee, cochair of the Forensic Science section of ACS’s Division of Chemistry & the Law and coorganizer of the Philadelphia session. To John J. Lentini, arson investigation is a particularly troubling example. Much of the field has been “witchcraft that passes for science,” he said in Philadelphia. Lentini, a fire investigator, discussed the 1980 “Fire Investigation Handbook,” which codified unwarranted generalizations. It was published by the National Bureau of
Project possible, says chemist Jay A. Siegel, a longtime forensic scientist and adjunct professor at Indiana University-Purdue University Indianapolis. The technology matured in the academic community, and if used properly, makes it posCONTROVERSIAL DATA Of the first 289 sible to link an individual to evidence convictions overturned by DNA testing, 45% such as bloody knives or semeninvolved faulty forensics. stained clothing. The absence of DNA doesn’t always mean a person is innocent, so DNA alone isn’t enough to solve a crime, Siegel cautions. “That’s a myth perpetuated by ‘CSI,’ ” the popular TV show. What’s more, some types of DNA technology have shortcomings, as Boise State University geneticist Greg Hampikian cautioned Philadelphia meeting attendees. Sample NOTE: Many convictions have more than one contributing cause. SOURCE: Innocence Project collection methods haven’t changed since DNA’s courtroom debut in the 1980s, even though assay sensitivity has Standards, the agency that predated the increased dramatically, he said. His group National Institute of Standards & Techhas shown that detectable amounts of DNA nology. The book associated irregular can transfer between specimens if a hancracks in glass—called crazed glass—with dler forgets to change gloves. Hampikian, rapid heating, which suggests the use of director of an Innocence Project affiliate in fire accelerants. It also stated that narrow Idaho, also showed that if exposed to extraV-shaped char patterns on walls indicate neous details about a case, experts can give fast-developing, hot fires. These myths, as very different interpretations when analyzLentini called them, were once considered ing DNA mixtures, as can appear in cases scientific fact in courtrooms. As an examof gang rape (Sci. Justice, DOI: 10.1016/j. ple, Lentini said, they were cited in the case scijus.2011.08.004). Despite these caveats, of Cameron Todd Willingham, a Texas man DNA testing is the gold standard among executed in 2004 for setting an arson fire forensic disciplines, because it has underthat almost certainly wasn’t arson. gone thorough scientific vetting. V-shaped patterns, as research from WWW.CEN-ONLIN E .ORG
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Lentini and others shows, can occur in fires set accidentally, not just arson fires. Crazed glass actually forms during rapid cooling, such as when fires are put out, not during rapid heating. The National Fire Protection Association has published scientific-based guidelines for arson investigations since 1992. But Lentini cautioned that misperceptions still abound. Traditional forensic science got grandfathered into the justice system, says Carrie Leonetti, an attorney who has served on the American Bar Association’s Task Force on Biological Evidence. “It’s a lot harder to ask a court to exclude evidence that has been admitted for a hundred years than to exclude evidence it’s never seen before,” Leonetti, of the University of Oregon School of Law, explains. “Because DNA was so new, it went through incredible vetting.” That didn’t happen for other forensic disciplines, she adds. As courts became willing to consider DNA technology, it enabled unprecedented reanalysis of old cases. The first DNA exoneration took place in 1989, just three years before Barnes contacted the Innocence Project from prison. In 1996, the Innocence Project obtained DNA test results on old evidence from the 1985 crime scene. DNA tests conducted before Barnes’s trial had been inconclusive. This second round came back inconclusive again. It would take more than a decade before scientific advances would give Barnes another chance. RESEARCH CONDUCTED by the
Innocence Project suggests that the number one contributor to wrongful convictions is eyewitness misidentification. But number two, involved 45% of the time, is faulty forensics, which the Innocence Project defines as testimony that isn’t scientifically vetted, exaggerated testimony, and forensic misconduct. In Philadelphia, Frederic W. Whitehurst, a Ph.D. chemist and former supervisory special agent at the Federal Bureau of Investigation Laboratory, discussed a colleague’s false or misleading forensic testimony in multiple cases. He also described how scientists would “run dead flat into a sledgehammer” when their results didn’t agree
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A New Look At Old Forensics New York, Buffalo, Peter J. and Mary A. Bush are part of a team that examines bitemark analysis. The technique assumes each person’s bite mark is unique, but the field lacks data supporting this assumption. The Bush team is using statistics and GUNFIRE’S REMNANTS
COURTESY OF PETER BUSH (BOTH)
At last month’s Innocence Project symposium at the American Chemical Society meeting in Philadelphia, speakers explained that many traditional forensic disciplines lack scientific validation. Several researchers are examining those traditional fields with a quantitative lens. For instance, quantum chemist Nicholas D. K. Petraco is working on a technique that, while not yet ready to be brought into a courtroom, might someday help associate a weapon such as a Glock pistol with crime scene evidence. The marks those pistols leave on cartridge cases—the part that holds gunpowder—are typically used by forensic experts to pair a cartridge with a gun. Petraco, of John Jay College of Criminal Justice at the City University of New York, uses computational pattern recognition and confocal microscopes to build three-dimensional models of striation and impression marks on cartridge surfaces (Scanning, DOI: 10.1002/ sca.20251). Others are using Raman spectroscopy to link gunshot residue to ammunition (C&EN, May 21, page 36). At the State University of
Threedimensional image of a shear pattern on a cartridge case made by the firing mechanism of a Glock 19, obtained by confocal microscopy. BITE MAPPING Digital
landmarks (red dots) on a bitemark image (right) and a model of the teeth used to create the bites (top) help measure bitemark variability. tooth scans obtained from a company that makes mouth guards to examine whether individual tooth arrangements are unique (J. Forensic Sci., DOI: 10.1111/j.1556-40 29.2010.01531.x). They’ve also borrowed a technique from paleontology and evolutionary biology that allows
with their supervisors’ thinking. White hurst’s whistle-blowing led to a 1995 Justice Department investigation of the FBI Lab. The institutional pressure Whitehurst experienced is not the norm, says José R. Almirall, a forensic scientist who worked for the Miami-Dade Police Department Crime Laboratory before becoming director of the International Forensics Research Institute at Florida International University. “In the 12 years I worked at a police agency, I never felt in any MORE ONLINE
them to measure the extent of variation in the pattern a bite leaves behind (Forensic Sci. Int., DOI: 10.1016/j. forsciint.2011.03.028). The team is using these in-
way forced to opine in one way or another.” Nor is exaggeration or falsification of forensic testimony commonplace, adds Philadelphia Department Police Forensic Services Bureau chemist David J. Wolf. “We don’t say whatever we feel like in court,” he says. “We have mock trials within our laboratory to teach new chemists how to go about testifying. It takes years to learn how to testify really well.” Wolf, who was in the audience in Philadelphia, says he felt wounded by the ses-
Watch video of Barnes and read more about forensic science reform efforts at http://cenm.ag/innocence. WWW.CEN-ONLIN E .ORG
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direct approaches for several reasons—including regulations from human subject research review boards. “You can’t just go out and bite a bunch of people,” Peter Bush says. The team places bite marks on research cadavers with casts of teeth mounted in a vise grip to precisely control bite pressure. But the model isn’t fully representative of bite marks at a crime scene. The researchers cannot replicate the violent altercation that goes along with the act of biting. The cadavers they use don’t retain all the properties of living skin. “But in science you have to start somewhere,” Peter Bush says. The results thus far, which have already been introduced in a handful of hearings, indicate that bite-mark analysis should be undertaken with caution because multiple suspects could have similar teeth.
sion. Attendance in the vast ballroom was sparse, but a handful of people, including Wolf, asked pointed questions. “It was the only lecture I’ve ever been to where I felt like I was being torn apart.” The long-festering wound for forensic scientists is the Innocence Project’s 45% figure, which they argue is unfairly high. “I think the Innocence Project underestimates bad lawyering as a cause of wrongful convictions,” Siegel says. Prosecutors may withhold evidence that could exonerate a defendant, and defense teams may not be trained to mount an argument against inappropriate testimony, he explains.
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ASSOCIATED P R ESS(BOT H)
When DNA evidence overturns a conreview in the scientific community, with viction, that doesn’t necessarily mean a known error rates and appropriate conforensic scientist was doing bad work, adds trols. A set of opinions, even expert opinThomas A. Brettell, a forensic chemist at ions, doesn’t amount to science, he adds. Cedar Crest College who Determining what conretired from the New Jersey tributes to wrongful convicState Police Office of Foren- HEADED HOME Barnes (left) tions is more complicated sic Sciences in 2007. Before wipes a tear while standing than assembling a list of his mother, Sylvia DNA, no way existed to de- with percentages, social scienBouchard, on Tuesday, Nov. finitively link an individual tists say. Considering only 25, 2008, the day he was to evidence, he says, and the freed after 19 years in prison. erroneous convictions is
vast majority of experts interpreted results in good faith. “Where the Innocence Project lost credibility with me was in trying to put blame squarely on the shoulders of forensic science,” says John M. Collins, emeritus Forensic Science Division director for the Michigan State Police. “There are some practitioners who don’t do a very good job in the courtroom, but that shouldn’t be an indictment of the science.” COLLINS COPUBLISHED a report
that puts the percentage of exonerations involving faulty forensics closer to 11%. The criticisms of forensic A PASSAGE Santana a recipe for selection bias, pushes open a door techniques have been published explains statistician Russell to leave for good the in law reviews, not peer-reviewed V. Lenth of the University of correctional facility scientific journals, Collins says. Iowa, who studies forensic where he was held Forensic experts’ opinions, he says, for five years. science. “We can’t make should be good enough. claims about all lawyers, or That’s not good enough, Whiteabout all forensic scientists, hurst argues. A 1993 Supreme Court based only on cases where one or both of decision in Daubert v. Merrell Dow Pharthese groups failed.” maceuticals ruled that forensic evidence at Whitehurst acknowledged this comtrials must be validated and subject to peer plexity in Philadelphia. “We stand here in WWW.CEN-ONLIN E .ORG
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judgment of forensic science labs,” he said. “But this is a bigger problem than just crime laboratories. This is a social problem.” Social pressures outweighed forensic evidence in the case of Raymond Santana. He and four others, all young teenagers, went to jail in 1990, convicted of raping and assaulting a New York City woman in the infamous “Central Park jogger case.” DNA evidence existed that pointed to the teens’innocence, but under intense media scrutiny, police and prosecutors “made up their minds we were guilty, and that was it,” Santana said in Philadelphia. It wasn’t until the real perpetrator, a serial rapist, came forward, and DNA confirmed his involvement, that Santana and the others were exonerated. After a five-year jail term, Santana had a difficult time adjusting, turning to selling drugs for a time. He thanked forensic scientists for securing his freedom. “Without you,” he said, “I wouldn’t be able to be talking here today.” IN PHILADELPHIA, Innocence Project
cofounder Neufeld asked ACS members to get involved in developing standards for forensic science. He also urged ACS to stand behind two bills making their way through Congress that would mandate changes to how forensic science in the U.S. is funded, organized, and regulated. Forensics have been in the federal limelight since a 2009 National Research Council report found much of the science in crime labs wanting (C&EN, June 25, page 32). Change is going to take time for forensic science, says Cedar Crest’s Brettell. “Everybody has the same goals in mind,” he says. But the legal community and the crime labs “are coming from two different directions.” “It’s a big cultural divide,” and a great amount of training must take place, Brettell adds. “That’s not going to happen without resources and understanding.” Barnes served more than 19 years in prison before DNA technology could be brought to bear on his case. In 2008, a test of short tandem repeats on the Y chromosomes of sperm found on the victim showed that Barnes wasn’t a match. He returned to a world that seemed to have moved on without him. “I didn’t know what the Internet was, what a cell phone was,” he said in Philadelphia. Now a free man, he said he’s passionate about his new purpose—speaking on behalf of the Innocence Project around the country. “I am trying to dedicate my life to the Innocence Project,” he said. “They gave me my life back.” ◾ WWW.CEN-ONLIN E .ORG
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